Appeal Court. 3 November, 1937

  Appeal from Claim against sureties on bond entered into under section 9, Sales by Auction Ordinance-Section 22 of same ordinance not prohibitive and no breach thereof committed by auctioneer-Therefore

                   

Held: Appeal allowed.

The facts are sufficiently set out in the judgment. E. J. Alex Taylor for Defendants-Appellants.

A. Kayode (F. E. O. Euba with him) for Plaintiff-Respondent.

The following joint judgment was delivered :-

KINGDON, C.]., NIGERIA, PETRIDES, C.]., GOLD COAST, AND CAREY, ].

The facts as they are set out in the interlocutory judgment of the trial Judge of the 16th July are as follows :-

On the 12th February, 1936, the defendants entered into a bond for £500 as sureties for ]. A. Williams as a licensed auctioneer, the condition of the bond being that the said Williams" do and shall in all things conform to all and every of the conditions of the said Sales by Auction Ordinance." On the 26th September, 1936, Williams sold to one Oduntan the premises known as No.8 John Street. Oduntan subsequently sued Williams and obtained judgment against him for £137 10s. and £8 8s. costs, whereof £123 was recovered as money paid for a consideration which failed and £14 10s. represented damages for deceit in that the defendant informed the plaintiff that he had authority from the mortgagees to sell this property when in fact he had none. This judgment has not been satisfied.

To these facts it is only necessary to add that before the sale to Oduntan the property had been put up for sale by auction which proved abortive. The owners then withdrew their instructions to sell, but did not recover the title deed from the auctioneer.

The Attorney-General then sued the defendants on their bond for the amount of this judgment and costs. In paragraph 3 of the statement of claim the plaintiff alleged that ]. A. Williams did not conform to the provisions of the Sales by Auction Ordinance in that he sold the house to Oduntan without the authority of the mort­gagees.

In the course of his judgment of the 27th July, 1937, the trial Judge said: "In retaining money received by him on behalf of the vendors the auctioneer was clearly acting dishonestly if not criminally, and in selling as he did he not only acted in direct disregard of his instruction, he also committed a breach of section 22 of the Sales by Auction Ordinance. That is to say that in terms of the bond he did not t in all things conform to all and every the provision of the Sales by Auction Ordinance,' and his sureties are liable accordingly.'"

He therefore gave judgment for the plaintiff for £145 18s. and 25 guineas costs.

Against this judgment the defendants have appealed to this Court.

Section 22 of the Sales by Auction Ordinance reads as follows :­" The employment of an auctioneer to sell any property by public auction, does not authorise him, in C3$~ the public auction proves abortive, to sell the property by private contract."

This section does not prohibit the sale by an auctioneer of any property the sale of which by auction has proved abortive, as in this case, but only provides that the mere employment of an auctioneer to sell any property by public auction does not authorise him, in case the auction sale proves abortive, to sell the property by private contract. The auctioneer may of course obtain authority in such a case from the owner of the property and the sale would be perfectly valid.

As in our opinion the auctioneer has not done anything pro­hibited by section 22 he has not by reason of the fact that his instruc­tions had been withdrawn at the time of sale committed a breach of section 22.

Respondent's Counsel admitted that he could not contend that the auctioneer committed a breach of section 22, but contended that he had committed a breach of section 9 of the same Ordinance. By this section

"If the licensing authority shall decide, or be directed by the Governor to grant a licence he shall require the applicant to give security by bond in the prescribed form for such sum as may be prescribed for such licence, with one or more sureties approved by the licensing authority, to answer for the faithful discharge of his office."

Respondent's Counsel does not dispute that the bond in the prescribed form was given, but says that as the auctioneer has not faithfully discharged his office his bondsmen are accordingly liable.

It not having been even suggested that the auctioneer did not give security by bond in the prescribed form as required by this section, we are at a loss to understand how it can be suggested that the auctioneer committed a breach of this section.

When one reads the section and looks at the prescribed form of bond in the schedule to the Ordinance it is obvious that the words " to answer for the faithful discharge of his office" means no more

than that the auctioneer" shall in all things conform to all and every the provisions of the Sales by Auction Ordinance."

The bondsmen did not stand sureties on a general fidelity bond. There being no evidence that the auctioneer failed to conform to any of the provisions of the Sales by Auction Ordinance this appeal must be allowed.

We allow the appeal with costs and direct that judgment be entered in the Court below for the appellant with costs.

We assess the costs in this Court at 30 guineas and in the Court below at 15 guineas.